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This is, btw, an issue that has come up with a client of ours.... upon moving in, a relatively badly done oil painting that had been in the house prior to close, was still there when they moved in. New owner walked over and picked it up off the wall, and discovered a two-foot hole in the wall. Internal wall, view was the bare studs and the back of the sheetrock in the next room.
Normal wear or hidden defect? Not sure.... the clients gave it only a chuckle and put the picture back. For all I know, it's still there.
I think we're confusing defects that are hidden vs an allowance for wear and tear that the seller might cause between contracting and closing.
Unless I'm missing something, these are two completely separate issues other than I suppose that if something were hidden and discovered by the buyer, the seller could try to claim it's just wear and tear anyway so whether hidden or not, it's a non-issue. but even with that, they are two completely different ideas and the seller would be misusing the wear and tear clause.
Of course there is nothing wrong with selling a house that has issues/defects beyond normal wear and tear. It's just that if you present it in a certain condition then contract but then prior to closing, proceed to cause damage that is not wear and tear, you have breached the contract. If defects are hidden in the selling process then that's a completely different argument/debate/lawsuit that might hinge on failure to disclose, was it really hidden, was it maliciously hidden, etc. Nothing to do with wear and tear between contracting and close.
Happened to us the day before we were to move out officially. Touched up a scratch hidden by the bed and the paint was now a different shade. We did paint the entire room. Didn't take very long with both of us wielding a brush. If you took pride in your home when you lived there, and we did, then we wanted to turn it over with the same pride as well. You know it is the right thing to do, why in heck do you have to ask your agent? I was a broker licensed in 3 states for over 30 years. I, when asked, always opted for the right thing to do. A good agent always does.
If I caused a problem that wasn't there when the buyer evaluated the home for purchase, e.g. I spot painted with paint that is no longer the right shade, I would also feel obligated to correct the problem that I caused.
But it would have nothing to do with pride for the property (although I always do have pride) - I would repaint because I caused the problem after the buyer decided to buy and it's my responsibility to correct it.
I think we're confusing defects that are hidden vs an allowance for wear and tear that the seller might cause between contracting and closing.
No... we're not. Since no one ever looked behind the pictures prior to contract, it's not perfectly clear when any of it occurred.
There are cases that are perfectly clear... a big picture window that is not broken at inspection, that comes up broken at closing. That's NEW damage. Seller has to fix it.
Our clients broke the sink in the kitchen a week after contract. They had to fix it. And quickly... before the appraiser got there and flagged it.
Nail holes in a wall are usually considered wear and tear. Nail holes that were filled and then painted with paint that doesn't completely match... that's a little muddier.
I would not spend as much energy worrying about it as has already been spent here... The good options are to call and ask the buyers, or paint the whole wall just so it looks nice. Neither should take days to decide.
I'll put in a plug for Benjamin Moore paint, kept inside the house in a climate controlled environment. I did patching and painting prior to listing my last house - did the paint nail holes plus a few areas of actual damage and some shelving that left large holes when removed.
Even knowing exactly where all the work was done, it was invisible to the eye.
I left the paint for my buyer who thanked me and said that he loved the paint colors and was glad to have the ability to continue to maintain them for a while.
No... we're not. Since no one ever looked behind the pictures prior to contract, it's not perfectly clear when any of it occurred.
There are cases that are perfectly clear... a big picture window that is not broken at inspection, that comes up broken at closing. That's NEW damage. Seller has to fix it.
Our clients broke the sink in the kitchen a week after contract. They had to fix it. And quickly... before the appraiser got there and flagged it.
Nail holes in a wall are usually considered wear and tear. Nail holes that were filled and then painted with paint that doesn't completely match... that's a little muddier.
I would not spend as much energy worrying about it as has already been spent here... The good options are to call and ask the buyers, or paint the whole wall just so it looks nice. Neither should take days to decide.
I think the OP is referring to a clause like this (from your own state P&S form):
Seller shall maintain the Property in its present condition, normal wear and tear excepted, until the Buyer is entitled to possession.
This is a specific obligation of the seller and the scope of the obligation is from contract signature to possession. It's about maintaining the home in its existing condition (at the time of signing the contract), not about fixing any hidden defects. It has nothing to do with hidden defects or any defects that existed prior to contract signature as that falls outside of the time scope of the obligation and those would be part of the 'present condition' which you're obligated to maintain.
In fact, it even means to me that fixing things that were damaged or worn before the execution of the contract may be legally problematic. I would think that although uncommon, sellers could get into trouble if they go off and 'improve' things in the house during this period. For example, the seller decides to refinish the hardwood floors for the buyer as a kind gesture. But the buyer liked the worn character of the floors as they were in their present condition. Could be a legal problem for the seller based on this clause. May be an extreme example but anything else would be no different.
If you're saying that, to avoid potential problems/disputes, a seller might be wise to just go off and fix a defect that he thinks may have been hidden from the buyer and the inspector, then that may be a practical action to take. But that has nothing to do with this wear and tear clause....except, I think it might even be technically prohibited by this clause as you're not maintaining the home in the present condition.
Just a layman's interpretation. Not meant as legal advice.
I'm not so sure what's so hard to understand about what I wrote, or what you object to, JB. Unless the buyer looked behind the pictures during the purchase process, there is no verifiable baseline for what "present condition" of the wall behind the pictures even was. So now what? We have a seller who has tried to make it look real nice, but it's not perfect. What's the standard here? We smooth over these ambiguities all the time, by talking to the parties involved and working out solutions. Don't make it more convoluted than it needs to be.
Take the paint to the paint store and ask them to make it a teeney bit darker — or better get sheer off a sample of the paint from an obscure corner and take it to the paint store and have them mix up a better match. Then, try retouching again. Bet you can touch up with improved paint without repainting the whole wall.
There is no excuse for my lame attempt to get support for avoiding doing what is right.
The wall was always going to be painted, but the effort seemed too much given the other chores.
Thank you for the comments and the usual spirited exchange.
What's the standard here? We smooth over these ambiguities all the time, by talking to the parties involved and working out solutions. Don't make it more convoluted than it needs to be.
2/3 of the time, revert to your legal, and if needed ethical, responsibilities.
1/3 of the time, ask your client what they would like to do.
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